Joint Opinion 09-59/09-86

April 23, 2009

Digest:         Subject to certain restrictions and otherwise complying with the Rules Governing Judicial Conduct, a part-time judge who practices law may indicate his/her judicial title on the website of the law firm at which he/she practices.

Rules:       22 NYCRR 100.2; 100.2(A), (C); 100.3(B)(9); 100.4(A)(2); 22 NYCRR 1200.50 -1200.54 (Rules 7.1 - 7.5); Opinions 08-176; 05-18; 04-30; 03-34; 99-105 (Vol. XVIII); 92-125 (Vol. X).

Opinion:

         Two part-time lawyer justices who also practice law ask whether they may list their judicial titles on their law office websites. Both inquirers acknowledge that the Committee has previously advised that doing so is ethically impermissible (see Opinion 05-18; 03-34) but ask the Committee to reconsider these opinions. One inquirer advises that “. . . websites for law firms have become accepted practice and are virtually on-line resumes.”

         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others, nor convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).

         The Committee previously has advised that a part-time judge may indicate in his/her resume that he/she is a judge when the resume is given to law office clients or prospective clients upon their request (see Opinion 05-18) and may indicate that he/she is a judge in information provided for publication in the Martindale-Hubbell lawyer-to-lawyer directory (see Opinion 99-105 [Vol. XVIII]). However, the Committee also has advised that a part-time lawyer judge may not permit his/her law firm to include his/her judicial title in advertisements for the firm’s services that are posted on the firm’s website (see Opinions 05-18; 03-34) or published in a local, weekly newspaper (see Opinion 92-125 [Vol. X]).

         The Committee recognizes that lawyers and law firms now routinely use different technologies, including the internet, to reach current and potential clients. For example, Martindale-Hubbell, which previously was available only in a set of hard-cover books, is now available online (see http://www.martindale.com [accessed May 21, 2009]). The Committee also recognizes that law firms have changed how they use their internet websites. Certainly, they are used by law firms to advertise their services and, in fact, are treated as an advertising media by the applicable attorney ethics rules, i.e., The Rules of Professional Conduct (see e.g. 22 NYCRR 1200.50 [Rule 7.1][f]). But, in addition, adversaries and co-counsel (and/or their respective clients) also may access law firm websites to learn more about their opponents and colleagues. Indeed, a law firm website may be the first place a person looks when they learn the identity of other counsel on a case. Therefore, the Committee now is of the view that a part-time lawyer judge who practices law may permit his/her law firm to include his/her judicial title in a firm biography that is published on the internet. However, the judge must ensure that the law firm does so in compliance with the Rules Governing Judicial Conduct (see Opinion 08-176 [question not whether a judge can use the internet site but, rather, how he/she does so]).

         The more frequently and prominently a law firm uses a judge’s title, the greater the risk that the judge will run afoul of the Rules Governing Judicial Conduct. Thus, in the Committee’s view, merely listing a part-time judge’s judicial title in his/her online biography on the law firm’s website is permissible, as long as the judge is careful to avoid the appearance that the judge’s judicial position is being used to promote either the law firm or the judge’s own legal services. A judge should not describe his/her judicial duties or significant cases over which he/she has presided. Rather, a judge should use a simple, direct statement similar to what would appear in a resume or in Martindale-Hubbell (see Opinions 05-18; 99-105[Vol. XVIII]). In addition, the information about a lawyer/judge that appears on a law firm’s website must not imply that a judge is pre-disposed to decide a certain class of cases in a particular way (see 22 NYCRR 100.2[A]; 100.3[B][9]) and must not otherwise detract from the dignity of judicial office (see 22 NYCRR 100.4[A][2]). Finally, the lawyer/judge must ensure that the information about him/her that is posted on a law firm’s website also complies with the applicable provisions of the Rules of Professional Conduct (see e.g. 22 NYCRR 1200.50 - 1200.54 [Rules 7.1-7.5]).

         Opinion 03-34 is overruled by this opinion, and Opinions 05-18, 04-30, and 99-105(Vol. XVIII) are modified to the extent that they are inconsistent with this opinion.